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Probing Spygate: Will the NFL Indemnify Key Witness?

From the moment of its initial disclosure, the National Football
League's (NFL's) so-called Spygate incident had the potential to be one
of the more notorious sports scandals in recent memory. During the
first game of the 2007 season, a videographer on the New England
Patriots sideline was caught taping the hand signals of New York Jets
offensive coaches, a violation of Article 9 of the NFL Constitution and
Bylaws.[1] The intrigue was apparent: the league's modern-day dynasty
had been caught red-handed, begging the question of whether the
Patriots had broken league rules at any other times during its
championship era. The NFL's first-year commissioner, Roger Goodell,
addressed the issue quickly, fining the team and head coach Bill
Belichick a combined $750,000 and taking away a first-round draft
pick.[2] Despite its rapid action, the NFL's handling of the situation
added to the mystery. After announcing the penalty, the league
destroyed the tapes it confiscated from the Patriots.[3] Further
fueling the controversy, U.S. Senator Arlen Specter publicly rebuked
the Patriots, accusing the team of "stonewalling" his own investigation
into the matter.[4]

The questions followed the then-undefeated Patriots to Super
Bowl XLII, when the Boston Herald reported that Matt Walsh, a former
Patriots employee, allegedly taped the St. Louis Rams walk-through
practice the day before New England's surprise upset of the Rams in
Super Bowl XXXVI.[5] Since that report, the NFL has expressed a desire
to speak with Walsh regarding his knowledge of any potential wrongdoing
by the team.[6] Walsh, for his part, has suggested he has damaging
information, but his legal representation is demanding full indemnity
before revealing his knowledge or role in any malfeasance.[7] The
negotiations over the scope of an indemnity agreement have lasted for
months, keeping the league in the dark as to what Walsh really knows.[8]

II. The Negotiations

Matt Walsh worked for the New England Patriots from 1996 to
2003, primarily shooting football video.[9] He claims he is willing,
though reticent, to speak with NFL officials for fear that the Patriots
will retaliate by suing him.[10] Walsh's attorney says that even if he
were to prevail in a court action regarding the accuracy of his
statements, the cost of engaging in a legal battle against and NFL
franchise would be substantial.[11] Walsh has also expressed concern
that the league could take away his 401k retirement plan.[12]

As a result, Walsh's attorney is seeking full indemnity from the
league to immunize him from potential legal action.[13] Goodell has
consistently stated that he is willing to provide indemnity in exchange
for Walsh's cooperation, but talks between attorneys for each side have
dragged on for months without an agreement on the scope.[14] NFL
spokesman Greg Aiello says the league has offered Walsh full immunity
on two conditions: that he is truthful and he hands over any materials
he took from the Patriots.[15] Walsh's attorney, Michael Levy, claims
that this offer falls short of full immunity.[16] Levy asserts that a
standard indemnification agreement protects against untruthfulness as
long as there is no bad faith.[17] In essence, Walsh wants to ensure
that he cannot be sued even if mistakenly makes false statements. The
NFL's indemnity offer would maintain the prospect of litigation if
there is any want of truthfulness whatsoever.

III. Further Attempts at the Truth

In addition to the NFL's Spygate probe, there have been
additional notable attempts to uncover more information. The
aforementioned Senator Specter has commenced his own Spygate
investigation, but claims his staff has been rebuffed in its attempts
to speak with personnel from the Patriots and Jets, who employ several
coaches who formerly worked under Belichick.[18] Specter says he
suspects that the NFL is only offering conditional immunity in an
attempt to discourage Walsh from speaking out.[19]

A former member of the St. Louis Rams tried a different
strategy. Willie Gary, who played on the 2002 Super Bowl team, brought
a federal lawsuit against the Patriots in February 2008.[20] Gary filed suit in New Orleans, the site of Super Bowl XXXVI, and accused New
England of fraud, unfair trade practices, and engaging in a pattern of
racketeering.[21] The claim was withdrawn in March, however, after
Gary's lawyers acknowledged that the suit was intended to illicit
testimony from Walsh.[22] Eventually, they determined the strategy to
be futile because Walsh would be able to exercise his 5th Amendment
right against self-incrimination in any legal proceeding.[23]

IV. Conclusion

The prolonged indemnification negotiations involving the NFL and
Matt Walsh call into question the intentions of both parties. The
longer the NFL goes without accommodating Walsh, the more it appears
they do not want his information to become public. For his part,
Walsh's insistence that he be indemnified from good faith mistakes
could reinforce speculation that his insinuations are empty.

In this instance, however, it is the NFL that should consider
compromising for the long-term good of its product. Though it is
reasonable to demand utter truthfulness, the prospect of defending a
lawsuit against a multi-billion dollar entity would sufficiently deter
many people from speaking out. Regardless of what Walsh may say, the
integrity of the league was brought into issue by the conduct of the
Patriots, not Walsh. Thus, the NFL's real targets should be those
within its ranks whose actions may tarnish the league's competitive
reputation. Suing Walsh would serve little remedial purpose for the
NFL, and by enabling his cooperation, all of his claims would be
subject to extensive public scrutiny. If Walsh is found to be
untruthful on any matter, the NFL would not necessarily need to resort
to litigation to rehabilitate its image or seek redress against Walsh.
The league would be vindicated in the all-important court of public
opinion, while Walsh would forever be branded a prevaricator.

The league's failure to offer Walsh full indemnity may, rightly
or wrongly, perpetuate Senator Specter's notion that the NFL does not
want Walsh to speak out. Though the league would like to hold the
threat of litigation over anyone who speaks falsely of it, the NFL's
own handling of Spygate has contributed to the ongoing questions over
the initial investigation. The destruction of the tapes, along with
the apparent closing of ranks within the league establishment has
exacerbated the situation. Enabling the testimony of Matt Walsh would
give the league the opportunity to tackle the integrity issues raised
by Spygate and potentially bring a measure of closure to this prolonged
saga.